Holloman v. Britton

• Decision Date: 13 October 1959
• Docket Number: No. 38312,38312
• Citation: 346 P.2d 941
• Parties: E. E. HOLLOMAN and T. C. McNutt, Plaintiffs in Error, v. E. W. BRITTON and George C. Wright Lumber Company, Defendants in Error.
• Court: Oklahoma Supreme Court

Page 941

346 P.2d 941

1959 OK 187

E. E. HOLLOMAN and T. C. McNutt, Plaintiffs in Error, v. E. W. BRITTON and George C. Wright Lumber Company Defendants in Error.

No. 38312.

Supreme Court of Oklahoma.

Oct. 13, 1959.

Rehearing Denied Nov. 24, 1959.

Syllabus by the Court.

1. In an action of legal cognizance tried to the court, it is not error for the court to make specific findings of fact and conclusions of law even though not requested to do so, and findings so made will be considered on appeal.

2. As a condition to allowing subcontractor mechanic's lien under a building contract which is entire and indivisible, substantial compliance with contract with owner must be shown.

3. Where materialman furnishes material under contract with subcontractor and not owner, materialman under 42 O.S.Supp.1957, section 143, only has lien 'from the same time, in the same manner * * * and to the same extent as original contractor,' and if original contractor does not have lien because of failure to substantially comply with contract with owner, materialman does not have lien.

4. Where a case is tried to the court without a jury and specific findings of fact and conclusions of law are made, and the judgment of the trial court is contrary to its findings of fact which are sustained by the evidence, case will be reversed and trial court directed to enter judgment that accords with findings of fact.

Appeal from District Court of Greer County; W. P. Keen, Judge.

Action to foreclose mechanic's lien and materialman's lien and for money judgment. From judgment for defendants in error, plaintiffs in error appeal. Reversed.

Arnett & McDaniel, by Hollis Arnett, Mangum, for plaintiffs in error.

Harbison & Whiteside, Altus, for defendants in error.

BERRY, Justice.

Plaintiff in error, E. E. Holloman, hereafter referred to as 'owner', entered into a contract in writing with plaintiff in error, T. C. McNutt, hereafter referred to as 'contractor', to construct a round-top barn on owner's farm located in Greer County, Oklahoma, for a total consideration of $3,500, $500 of which was paid at the time the contract was entered into. Contractor subsequently entered into a contract in writing with defendant in error, E. W. Britton, hereafter referred to as 'subcontractor', to construct said barn for a consideration of $3,600. Contractor testified that his purpose in agreeing to cause the barn to be constructed at a loss was to promote the building of quonset barns in the vicinity of owner's farm and thus further his business which was that of building said type of barn.

Within the time provided in 42 O.S.1951 § 142, subcontractor filed a lien statement with the Clerk of the District Court of Greer County in which subcontractor referred to his contract with contractor and stated in substance that the contract had been complied with and asserted a lien in the amount of $3,600 against the real estate upon which the barn was constructed. Subcontractor subsequently filed this action to foreclose said lien and for judgment against owner and contractor for $3,600, together with interest from date of filing said action.

Defendant in error, George C. Wright Lumber Company, hereafter referred to as 'lumber company' was made a party to this action and upon being made a party filed a 'Plea In Intervention', wherein it alleged in substance that it furnished building materials to subcontractor of the value of $2,002.74 which were used in building the barn and that no part of said sum had been paid; that it had timely filed a materialman's lien in said sum and in which it asserted a lien against the real estate upon which the barn was built; that it was entitled to judgment against owner, contractor and subcontractor in the amount of $2,002.74, together with interest at 6% from December 26, 1956, and foreclosure of its lien. Subcontractor and not owner contracted for the building materials.

Owner and contractor filed separate answers to the petition of subcontractor and the plea in intervention of lumber company and therein alleged in substance that the barn was not built in accordance with the contracts and specifications; that the barn was never completed; that the lumber in the barn was of inferior grade and quality; that the workmanship was 'shoddy and badly done' that the barn leaked in time of rain and was totally unfit for the storage of grain, hay or machinery. Subcontractor and lumber company were, on the date of the trial, granted permission to file verified replies to owner and contractor's answers instantur, which replies were apparently never filed.

The parties elected to forego right of trial to jury and proceeded to trial before the court. At the conclusion of the trial, the trial court found for subcontractor and lumber company and subsequently entered judgment for subcontractor against owner and contractor in the amount of $498, together with interest, and entered judgment in favor of lumber company against owner and contractor in the amount of $1,252, together with interest. Subcontractor and lumber company were allowed liens in the amount of their judgment and foreclosure of the liens was ordered.

The trial court also made specific findings of fact and conclusions of law which findings of fact embraced these:

'(11) The Court further finds that the lumber furnished by Geo. C. Wright Lumber Company did not substantially comply with the contract, was pithy and of inferior grade and that by reason thereof there should be deducted the sum of $750.00 from said $2,002.00, leaving a balance due Geo. C. Wright...